I’ve been eager to revisit my earlier thoughts on l’affaire DSK as the case against him began to unravel during the past few days. As it turns out, we’ll probably never know for sure what happened in that hotel room. It’s hard to imagine how a case can proceed in the face of questions about the alleged victim’s credibility. This outcome would be understandable even though it may fall short of the ideal of justice (in the sense of objectively determining what happened and either punishing or vindicating the accused). A witness’ credibility matters, but in theory it doesn’t map directly to truth or falsehood. On the one hand, people may lie if they sense there could be something in it for them, no matter what the consequences for themselves or those accused – the Duke lacrosse case is one particularly salient example. On the other hand, it’s also possible for people with questionable judgment or even bad intentions to be the victims of crime. But as Citizens and Jurors, often the best we can do is handicap the likelihood that a given account is true, false, or somewhere in between, and questions of consistency and motivation matter in that calculus.
Given that my initial intuition about the case now appears much more likely to have been wrong, What have I learned? The four heuristics that formed the basis of my intuition all still seem reasonable to me. However, I think there were two probable sources of error that I underestimated at the time. The first, which I think is the dominant source of error, is that the DA’s office was compelled to act on an accelerated timeline because DSK was in imminent danger of leaving the country. I took the facts of an arrest and indictment as indications of the probability of the truth of the allegations (given the risks to various parties of “getting it wrong”) when in reality they may not have been more than a necessity to give the alleged victim a fair hearing. The second is that I did not give sufficient consideration to the possibility that the alleged victim would act irrationally. I had assumed that she would view her downside risk as being very high (in fact, it is – she may be headed for deportation or jail!) and would only take action if she were very sure she would prevail. In reality, she may have either not been aware of the downside risks, or may have had unwarranted confidence in her likelihood of success.
My sense is that the DA’s office has acted properly throughout and has had the unenviable task of trying to balance the protection of a seemingly vulnerable accuser with fairness to a powerful international figure. If they end up dropping this case due to the inconsistencies that have come to light, I don’t think it would be to their discredit.
Perhaps the DA’s next balancing act will be between the need to do justice to DSK to the extent that he has been wrongfully accused, and the desire to avoid chilling the powerless from speaking out against the powerful when they have truly been victimized.